Texas 2011 - 82nd Regular

Texas Senate Bill SB1196 Compare Versions

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1	1	By: Rodriguez S.B. No. 1196
2	2	(Hartnett)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to guardianships and alternatives to guardianship for
8	8	persons who have physical disabilities or who are incapacitated.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subdivision (25), Section 601, Texas Probate
11	11	Code, is amended to read as follows:
12	12	(25) The term ["Proceedings in guardianship,"
13	13	"guardianship matter," "guardianship matters,"] "guardianship
14	14	proceeding" means [proceeding," and "proceedings for guardianship"
15	15	are synonymous and include] a matter or proceeding related
16	16	[relating] to a guardianship or any other matter covered
17	17	[addressed] by this chapter, including:
18	18	(A) the appointment of a guardian of a minor or
19	19	other incapacitated person, including an incapacitated adult for
20	20	whom another court obtained continuing, exclusive jurisdiction in a
21	21	suit affecting the parent-child relationship when the person was a
22	22	child;
23	23	(B) an application, petition, or motion
24	24	regarding guardianship or an alternative to guardianship under this
25	25	chapter;
26	26	(C) a mental health action; and
27	27	(D) an application, petition, or motion
28	28	regarding a trust created under Section 867 of this code.
29	29	SECTION 2. Section 605, Texas Probate Code, is amended to
30	30	read as follows:
31	31	Sec. 605. GENERAL PROBATE [COUNTY] COURT JURISDICTION IN
32	32	GUARDIANSHIP PROCEEDINGS; APPEALS. (a) All guardianship
33	33	proceedings must be filed and heard in a court exercising original
34	34	probate jurisdiction. The court exercising original probate
35	35	jurisdiction also has jurisdiction of all matters related to the
36	36	guardianship proceeding as specified in Section 606A of this code
37	37	for that type of court.
38	38	(b) A probate court may exercise pendent and ancillary
39	39	jurisdiction as necessary to promote judicial efficiency and
40	40	economy.
41	41	(c) A final order issued by a probate court is appealable to
42	42	the court of appeals. [The county court has the general
43	43	jurisdiction of a probate court. The county court shall appoint
44	44	guardians of minors and other incapacitated persons, grant letters
45	45	of guardianship, settle accounts of guardians, and transact all
46	46	business appertaining to estates subject to guardianship,
47	47	including the settlement, partition, and distribution of the
48	48	estates. The county court may also enter other orders as may be
49	49	authorized under this chapter.]
50	50	SECTION 3. Subpart A, Part 2, Chapter XIII, Texas Probate
51	51	Code, is amended by adding Sections 606A, 607A, 607B, 607C, 607D,
52	52	and 607E to read as follows:
53	53	Sec. 606A. MATTERS RELATED TO GUARDIANSHIP PROCEEDING.
54	54	(a) For purposes of this code, in a county in which there is no
55	55	statutory probate court, a matter related to a guardianship
56	56	proceeding includes:
57	57	(1) the granting of letters of guardianship;
58	58	(2) the settling of an account of a guardian and all
59	59	other matters relating to the settlement, partition, or
60	60	distribution of a ward's estate;
61	61	(3) a claim brought by or against a guardianship
62	62	estate;
63	63	(4) an action for trial of title to real property that
64	64	is guardianship estate property, including the enforcement of a
65	65	lien against the property;
66	66	(5) an action for trial of the right of property that
67	67	is guardianship estate property;
68	68	(6) after a guardianship of the estate of a ward is
69	69	required to be settled as provided by Section 745 of this code:
70	70	(A) an action brought by or on behalf of the
71	71	former ward against a former guardian of the ward for alleged
72	72	misconduct arising from the performance of the person's duties as
73	73	guardian;
74	74	(B) an action calling on the surety of a guardian
75	75	or former guardian to perform in place of the guardian or former
76	76	guardian, which may include the award of a judgment against the
77	77	guardian or former guardian in favor of the surety;
78	78	(C) an action against a former guardian of the
79	79	former ward that is brought by a surety that is called on to perform
80	80	in place of the former guardian;
81	81	(D) a claim for the payment of compensation,
82	82	expenses, and court costs, and any other matter authorized under
83	83	Subpart H, Part 2, of this chapter; and
84	84	(E) a matter related to an authorization made or
85	85	duty performed by a guardian under Subpart C, Part 4, of this
86	86	chapter; and
87	87	(7) the appointment of a trustee for a trust created
88	88	under Section 867 of this code, the settling of an account of the
89	89	trustee, and all other matters relating to the trust.
90	90	(b) For purposes of this code, in a county in which there is
91	91	a statutory probate court, a matter related to a guardianship
92	92	proceeding includes:
93	93	(1) all matters and actions described in Subsection
94	94	(a) of this section;
95	95	(2) a suit, action, or application filed against or on
96	96	behalf of a guardianship or a trustee of a trust created under
97	97	Section 867 of this code; and
98	98	(3) a cause of action in which a guardian in a
99	99	guardianship pending in the statutory probate court is a party.
100	100	Sec. 607A. ORIGINAL JURISDICTION FOR GUARDIANSHIP
101	101	PROCEEDINGS. (a) In a county in which there is no statutory
102	102	probate court or county court at law exercising original probate
103	103	jurisdiction, the county court has original jurisdiction of
104	104	guardianship proceedings.
105	105	(b) In a county in which there is no statutory probate
106	106	court, but in which there is a county court at law exercising
107	107	original probate jurisdiction, the county court at law exercising
108	108	original probate jurisdiction and the county court have concurrent
109	109	original jurisdiction of guardianship proceedings, unless
110	110	otherwise provided by law. The judge of a county court may hear
111	111	guardianship proceedings while sitting for the judge of any other
112	112	county court.
113	113	(c) In a county in which there is a statutory probate court,
114	114	the statutory probate court has original jurisdiction of
115	115	guardianship proceedings.
116	116	Sec. 607B. JURISDICTION OF CONTESTED GUARDIANSHIP
117	117	PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT OR COUNTY
118	118	COURT AT LAW. (a) In a county in which there is no statutory
119	119	probate court or county court at law exercising original probate
120	120	jurisdiction, when a matter in a guardianship proceeding is
121	121	contested, the judge of the county court may, on the judge's own
122	122	motion, or shall, on the motion of any party to the proceeding,
123	123	according to the motion:
124	124	(1) request the assignment of a statutory probate
125	125	court judge to hear the contested matter, as provided by Section
126	126	25.0022, Government Code; or
127	127	(2) transfer the contested matter to the district
128	128	court, which may then hear the contested matter as if originally
129	129	filed in the district court.
130	130	(b) If a party to a guardianship proceeding files a motion
131	131	for the assignment of a statutory probate court judge to hear a
132	132	contested matter in the proceeding before the judge of the county
133	133	court transfers the contested matter to a district court under this
134	134	section, the county judge shall grant the motion for the assignment
135	135	of a statutory probate court judge and may not transfer the matter
136	136	to the district court unless the party withdraws the motion.
137	137	(c) If a judge of a county court requests the assignment of a
138	138	statutory probate court judge to hear a contested matter in a
139	139	guardianship proceeding on the judge's own motion or on the motion
140	140	of a party to the proceeding as provided by this section, the judge
141	141	may request that the statutory probate court judge be assigned to
142	142	the entire proceeding on the judge's own motion or on the motion of
143	143	a party.
144	144	(d) A party to a guardianship proceeding may file a motion
145	145	for the assignment of a statutory probate court judge under this
146	146	section before a matter in the proceeding becomes contested, and
147	147	the motion is given effect as a motion for assignment of a statutory
148	148	probate court judge under Subsection (a) of this section if the
149	149	matter later becomes contested.
150	150	(e) Notwithstanding any other law, a transfer of a contested
151	151	matter in a guardianship proceeding to a district court under any
152	152	authority other than the authority provided by this section:
153	153	(1) is disregarded for purposes of this section; and
154	154	(2) does not defeat the right of a party to the
155	155	proceeding to have the matter assigned to a statutory probate court
156	156	judge in accordance with this section.
157	157	(f) A statutory probate court judge assigned to a contested
158	158	matter in a guardianship proceeding or to the entire proceeding
159	159	under this section has the jurisdiction and authority granted to a
160	160	statutory probate court by this code. A statutory probate court
161	161	judge assigned to hear only the contested matter in a guardianship
162	162	proceeding shall, on resolution of the matter, including any appeal
163	163	of the matter, return the matter to the county court for further
164	164	proceedings not inconsistent with the orders of the statutory
165	165	probate court or court of appeals, as applicable. A statutory
166	166	probate court judge assigned to the entire guardianship proceeding
167	167	as provided by Subsection (c) of this section shall, on resolution
168	168	of the contested matter in the proceeding, including any appeal of
169	169	the matter, return the entire proceeding to the county court for
170	170	further proceedings not inconsistent with the orders of the
171	171	statutory probate court or court of appeals, as applicable.
172	172	(g) A district court to which a contested matter in a
173	173	guardianship proceeding is transferred under this section has the
174	174	jurisdiction and authority granted to a statutory probate court by
175	175	this code. On resolution of a contested matter transferred to the
176	176	district court under this section, including any appeal of the
177	177	matter, the district court shall return the matter to the county
178	178	court for further proceedings not inconsistent with the orders of
179	179	the district court or court of appeals, as applicable.
180	180	(h) If only the contested matter in a guardianship
181	181	proceeding is assigned to a statutory probate court judge under
182	182	this section, or if the contested matter in a guardianship
183	183	proceeding is transferred to a district court under this section,
184	184	the county court shall continue to exercise jurisdiction over the
185	185	management of the guardianship, other than a contested matter,
186	186	until final disposition of the contested matter is made in
187	187	accordance with this section. Any matter related to a guardianship
188	188	proceeding in which a contested matter is transferred to a district
189	189	court may be brought in the district court. The district court in
190	190	which a matter related to the proceeding is filed may, on the
191	191	court's own motion or on the motion of any party, find that the
192	192	matter is not a contested matter and transfer the matter to the
193	193	county court with jurisdiction of the management of the
194	194	guardianship.
195	195	(i) If a contested matter in a guardianship proceeding is
196	196	transferred to a district court under this section, the district
197	197	court has jurisdiction of any contested matter in the proceeding
198	198	that is subsequently filed, and the county court shall transfer
199	199	those contested matters to the district court. If a statutory
200	200	probate court judge is assigned under this section to hear a
201	201	contested matter in a guardianship proceeding, the statutory
202	202	probate court judge shall be assigned to hear any contested matter
203	203	in the proceeding that is subsequently filed.
204	204	(j) The clerk of a district court to which a contested
205	205	matter in a guardianship proceeding is transferred under this
206	206	section may perform in relation to the transferred matter any
207	207	function a county clerk may perform with respect to that type of
208	208	matter.
209	209	Sec. 607C. JURISDICTION OF CONTESTED GUARDIANSHIP
210	210	PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT. (a) In a
211	211	county in which there is no statutory probate court, but in which
212	212	there is a county court at law exercising original probate
213	213	jurisdiction, when a matter in a guardianship proceeding is
214	214	contested, the judge of the county court may, on the judge's own
215	215	motion, or shall, on the motion of any party to the proceeding,
216	216	transfer the contested matter to the county court at law. In
217	217	addition, the judge of the county court, on the judge's own motion
218	218	or on the motion of a party to the proceeding, may transfer the
219	219	entire proceeding to the county court at law.
220	220	(b) A county court at law to which a proceeding is
221	221	transferred under this section may hear the proceeding as if
222	222	originally filed in that court. If only a contested matter in the
223	223	proceeding is transferred, on the resolution of the matter, the
224	224	matter shall be returned to the county court for further
225	225	proceedings not inconsistent with the orders of the county court at
226	226	law.
227	227	Sec. 607D. EXCLUSIVE JURISDICTION OF GUARDIANSHIP
228	228	PROCEEDING IN COUNTY WITH STATUTORY PROBATE COURT. (a) In a
229	229	county in which there is a statutory probate court, the statutory
230	230	probate court has exclusive jurisdiction of all guardianship
231	231	proceedings, regardless of whether contested or uncontested.
232	232	(b) A cause of action related to a guardianship proceeding
233	233	of which the statutory probate court has exclusive jurisdiction as
234	234	provided by Subsection (a) of this section must be brought in the
235	235	statutory probate court unless the jurisdiction of the statutory
236	236	probate court is concurrent with the jurisdiction of a district
237	237	court as provided by Section 607E of this code or with the
238	238	jurisdiction of any other court.
239	239	Sec. 607E. CONCURRENT JURISDICTION WITH DISTRICT COURT. A
240	240	statutory probate court has concurrent jurisdiction with the
241	241	district court in:
242	242	(1) a personal injury, survival, or wrongful death
243	243	action by or against a person in the person's capacity as a
244	244	guardian; and
245	245	(2) an action involving a guardian in which each other
246	246	party aligned with the guardian is not an interested person in the
247	247	guardianship.
248	248	SECTION 4. Section 608, Texas Probate Code, is amended to
249	249	read as follows:
250	250	Sec. 608. TRANSFER OF [GUARDIANSHIP] PROCEEDING BY
251	251	STATUTORY PROBATE COURT. (a) A judge of a statutory probate
252	252	court, on the motion of a party to the action or of a person
253	253	interested in the [a] guardianship, may:
254	254	(1) transfer to the judge's court from a district,
255	255	county, or statutory court a cause of action that is a matter
256	256	related [appertaining to or incident] to a guardianship proceeding
257	257	[estate that is] pending in the statutory probate court, including
258	258	[or] a cause of action that is a matter related [relating] to a
259	259	guardianship proceeding pending in the statutory probate court and
260	260	in which the [a] guardian, ward, or proposed ward in the [a
261	261	guardianship] pending guardianship proceeding [in the statutory
262	262	probate court] is a party; and
263	263	(2) [may] consolidate the transferred cause of action
264	264	with the guardianship proceeding to which it relates and any other
265	265	proceedings in the statutory probate court that are related
266	266	[relating] to the guardianship proceeding [estate].
267	267	(b) Notwithstanding any other provision of this chapter,
268	268	the proper venue for an action by or against a guardian, ward, or
269	269	proposed ward for personal injury, death, or property damages is
270	270	determined under Section 15.007, Civil Practice and Remedies Code.
271	271	SECTION 5. The heading to Section 609, Texas Probate Code,
272	272	is amended to read as follows:
273	273	Sec. 609. TRANSFER OF CONTESTED GUARDIANSHIP OF THE PERSON
274	274	OF A MINOR.
275	275	SECTION 6. Subsection (a), Section 609, Texas Probate Code,
276	276	is amended to read as follows:
277	277	(a) If an interested person contests an application for the
278	278	appointment of a guardian of the person of a minor or an interested
279	279	person seeks the removal of a guardian of the person of a minor, the
280	280	judge, on the judge's own motion, may transfer all matters related
281	281	[relating] to the guardianship proceeding [of the person of the
282	282	minor] to a court of competent jurisdiction in which a suit
283	283	affecting the parent-child relationship under the Family Code is
284	284	pending.
285	285	SECTION 7. Subsection (a), Section 611, Texas Probate Code,
286	286	is amended to read as follows:
287	287	(a) If two or more courts have concurrent venue of a
288	288	guardianship proceeding [matter], the court in which an application
289	289	for a guardianship proceeding is initially filed has and retains
290	290	jurisdiction of the proceeding [guardianship matter]. A proceeding
291	291	is considered commenced by the filing of an application alleging
292	292	facts sufficient to confer venue, and the proceeding initially
293	293	legally commenced extends to all of the property of the
294	294	guardianship estate.
295	295	SECTION 8. Subsection (a), Section 621, Texas Probate Code,
296	296	is amended to read as follows:
297	297	(a) An application for a guardianship proceeding or[,] a
298	298	complaint, petition, or other paper permitted or required by law to
299	299	be filed in the court in a guardianship proceeding [matters] shall
300	300	be filed with the county clerk of the proper county.
301	301	SECTION 9. Subsections (a) and (b), Section 622, Texas
302	302	Probate Code, are amended to read as follows:
303	303	(a) The laws regulating costs in ordinary civil cases apply
304	304	to a guardianship proceeding [matter] unless otherwise expressly
305	305	provided by this chapter.
306	306	(b) When a person other than the guardian, attorney ad
307	307	litem, or guardian ad litem files an application, complaint, or
308	308	opposition in relation to a guardianship proceeding [matter], the
309	309	clerk may require the person to give security for the probable costs
310	310	of the [guardianship] proceeding before filing. A person
311	311	interested in the guardianship or in the welfare of the ward, or an
312	312	officer of the court, at any time before the trial of an
313	313	application, complaint, or opposition in relation to a guardianship
314	314	proceeding [matter], may obtain from the court, on written motion,
315	315	an order requiring the person who filed the application, complaint,
316	316	or opposition to give security for the probable costs of the
317	317	proceeding. The rules governing civil suits in the county court
318	318	relating to this subject control in these cases.
319	319	SECTION 10. Section 629, Texas Probate Code, is amended to
320	320	read as follows:
321	321	Sec. 629. CALL OF THE DOCKETS. The judge of the court in
322	322	which a guardianship proceeding is pending, as the judge
323	323	determines, shall call guardianship proceedings [matters] in their
324	324	regular order on both the guardianship and claim dockets and shall
325	325	make necessary orders.
326	326	SECTION 11. Section 630, Texas Probate Code, is amended to
327	327	read as follows:
328	328	Sec. 630. CLERK MAY SET HEARINGS. If the [county] judge is
329	329	absent from the county seat or is on vacation, disqualified, ill, or
330	330	deceased and is unable to designate the time and place for hearing a
331	331	guardianship proceeding [matter] pending in the judge's court, the
332	332	county clerk of the county in which the proceeding [matter] is
333	333	pending may designate the time and place for hearing, entering the
334	334	setting on the judge's docket and certifying on the docket the
335	335	reason that the judge is not acting to set the hearing. If a
336	336	qualified judge is not present for the hearing, after service of the
337	337	notices and citations required by law with reference to the time and
338	338	place of hearing has been perfected, the hearing is automatically
339	339	continued from day to day until a qualified judge is present to hear
340	340	and make a determination in the proceeding [determine the matter].
341	341	SECTION 12. The heading to Section 632, Texas Probate Code,
342	342	is amended to read as follows:
343	343	Sec. 632. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF
344	344	CITATION, NOTICES, AND WRITS IN GUARDIANSHIP PROCEEDINGS
345	345	[MATTERS].
346	346	SECTION 13. Subsections (a), (b), and (h), Section 632,
347	347	Texas Probate Code, are amended to read as follows:
348	348	(a) A person does not need to be cited or otherwise given
349	349	notice in a guardianship proceeding [matter] except in situations
350	350	in which this chapter expressly provides for citation or the giving
351	351	of notice. If this chapter does not expressly provide for citation
352	352	or the issuance or return of notice in a guardianship proceeding
353	353	[matter], the court may require that notice be given. If the court
354	354	requires that notice be given, the court shall prescribe the form
355	355	and manner of service and return of service.
356	356	(b) Unless a court order is required by a provision of this
357	357	chapter, the county clerk shall issue without a court order
358	358	necessary citations, writs, and process in guardianship
359	359	proceedings [matters] and all notices not required to be issued by
360	360	guardians.
361	361	(h) In a guardianship proceeding [matter] in which citation
362	362	or notice is required to be served by posting and issued in
363	363	conformity with the applicable provision of this code, the citation
364	364	or notice and the service of and return of the citation or notice is
365	365	sufficient and valid if a sheriff or constable posts a copy of the
366	366	citation or notice at the place or places prescribed by this chapter
367	367	on a day that is sufficiently before the return day contained in the
368	368	citation or notice for the period of time for which the citation or
369	369	notice is required to be posted to elapse before the return day of
370	370	the citation or notice. The sufficiency or validity of the citation
371	371	or notice or the service of or return of the service of the citation
372	372	or notice is not affected by the fact that the sheriff or constable
373	373	makes the [his] return on the citation or notice and returns the
374	374	citation or notice to the court before the period elapses for which
375	375	the citation or notice is required to be posted, even though the
376	376	return is made, and the citation or notice is returned to the court,
377	377	on the same day it is issued.
378	378	SECTION 14. Section 641, Texas Probate Code, is amended to
379	379	read as follows:
380	380	Sec. 641. DEFECTS IN PLEADING. A court may not invalidate a
381	381	pleading in a guardianship proceeding [matter] or an order based on
382	382	the pleading based on a defect of form or substance in the pleading,
383	383	unless the defect has been timely objected to and called to the
384	384	attention of the court in which the proceeding was or is pending.
385	385	SECTION 15. Section 646, Texas Probate Code, is amended by
386	386	amending Subsection (e) and adding Subsection (f) to read as
387	387	follows:
388	388	(e) The term of appointment of an attorney ad litem
389	389	appointed under this section expires, without a court order, on the
390	390	date the court [either] appoints a guardian in accordance with
391	391	Section 693 of this code, appoints a successor guardian, or denies
392	392	the application for appointment of a guardian, unless the court
393	393	determines that the continued appointment of the attorney ad litem
394	394	is in the ward's best interest.
395	395	(f) The term of appointment of an attorney ad litem
396	396	appointed under this section continues after the court appoints a
397	397	temporary guardian under Section 875 of this code unless a court
398	398	order provides for the termination or expiration of the attorney ad
399	399	litem's appointment.
400	400	SECTION 16. Section 650, Texas Probate Code, is amended to
401	401	read as follows:
402	402	Sec. 650. DECREES. A decision, order, decree, or judgment
403	403	of the court in a guardianship proceeding [matter] must be rendered
404	404	in open court, except in a case in which it is otherwise expressly
405	405	provided.
406	406	SECTION 17. Section 653, Texas Probate Code, is amended to
407	407	read as follows:
408	408	Sec. 653. EXECUTION. An execution in a guardianship
409	409	proceeding [matter] shall be directed "To any sheriff or any
410	410	constable within the State of Texas," made returnable in 60 days,
411	411	and attested and signed by the clerk officially under the seal of
412	412	the court. A proceeding under an execution in a guardianship
413	413	proceeding [matter] is governed so far as applicable by the laws
414	414	regulating a proceeding under an execution issued from the district
415	415	court. An execution directed to the sheriff or a constable of a
416	416	specific county in this state may not be held defective if the
417	417	execution was properly executed within the county by the officer to
418	418	whom the direction for execution was given.
419	419	SECTION 18. Section 666, Texas Probate Code, is amended to
420	420	read as follows:
421	421	Sec. 666. EXPENSES ALLOWED. A guardian is entitled to be
422	422	reimbursed from the guardianship estate for all necessary and
423	423	reasonable expenses incurred in performing any duty as a guardian,
424	424	including reimbursement for the payment of reasonable attorney's
425	425	fees necessarily incurred by the guardian in connection with the
426	426	management of the estate or any other [guardianship] matter in the
427	427	guardianship.
428	428	SECTION 19. Subsection (a), Section 669, Texas Probate
429	429	Code, is amended to read as follows:
430	430	(a) Except as provided by Subsection (b) of this section, in
431	431	a guardianship proceeding [matter], the cost of the proceeding,
432	432	including the cost of the guardian ad litem or court visitor, shall
433	433	be paid out of the guardianship estate, or, if the estate is
434	434	insufficient to pay for the cost of the proceeding, the cost of the
435	435	proceeding shall be paid out of the county treasury, and the
436	436	judgment of the court shall be issued accordingly.
437	437	SECTION 20. Subsections (a-1) and (a-2), Section 682A,
438	438	Texas Probate Code, are amended to read as follows:
439	439	(a-1) Notwithstanding any other law, if the applicant who
440	440	files an application under Subsection (a) of this section or
441	441	Section 682 of this code is a person who was appointed conservator
442	442	of a disabled child and the proceeding is a guardianship proceeding
443	443	described by Section 601(25)(A) of this code in which the proposed
444	444	ward is the incapacitated adult with respect to whom another court
445	445	obtained continuing, exclusive jurisdiction in a suit affecting the
446	446	parent-child relationship when the person was a child [for whom a
447	447	court obtains jurisdiction under Section 606(k) of this code], the
448	448	applicant may present to the court a written letter or certificate
449	449	that meets the requirements of Section 687(a) of this code.
450	450	(a-2) If, on receipt of the letter or certificate described
451	451	by Subsection (a-1) of this section, the court is able to make the
452	452	findings required by Section 684 of this code, the court,
453	453	notwithstanding Section 677 of this code, shall appoint the
454	454	conservator as guardian without conducting a hearing and shall, to
455	455	the extent possible, preserve the terms of possession and access to
456	456	the ward that applied before the court obtained jurisdiction of the
457	457	guardianship proceeding [under Section 606(k) of this code].
458	458	SECTION 21. Subsection (c), Section 687, Texas Probate
459	459	Code, is amended to read as follows:
460	460	(c) If the basis of the proposed ward's alleged incapacity
461	461	is mental retardation, the court may not grant an application to
462	462	create a guardianship for the proposed ward unless the applicant
463	463	presents to the court a written letter or certificate that:
464	464	(1) [a written letter or certificate that:
465	465	[(A)] complies with Subsection (a) of this
466	466	section; [and
467	467	[(B) states that the physician has made a
468	468	determination of mental retardation in accordance with Section
469	469	593.005, Health and Safety Code;] or
470	470	(2) shows that [both]:
471	471	(A) [written documentation showing that,] not
472	472	earlier than 24 months before the date of the hearing, the proposed
473	473	ward has been examined by a physician or psychologist licensed in
474	474	this state or certified by the Department of Aging and Disability
475	475	Services to perform the examination, in accordance with rules of
476	476	the executive commissioner of the Health and Human Services
477	477	Commission governing examinations of that kind; and
478	478	(B) the physician's or psychologist's written
479	479	findings and recommendations to the court include [, including] a
480	480	statement as to whether the physician or psychologist has made a
481	481	determination of mental retardation in accordance with Section
482	482	593.005, Health and Safety Code.
483	483	SECTION 22. Subsection (c), Section 729, Texas Probate
484	484	Code, is amended to read as follows:
485	485	(c) An inventory made under this section must specify:
486	486	(1) what portion of the property is separate property
487	487	and what portion is community property; and
488	488	(2) if [. If] any of the property is owned in common
489	489	with other persons, the interest owned by the ward [shall be shown
490	490	in the inventory, together with the names and relationship, if
491	491	known, of co-owners].
492	492	SECTION 23. Section 730, Texas Probate Code, is amended to
493	493	read as follows:
494	494	Sec. 730. LIST OF CLAIMS. The guardian shall make and
495	495	attach to an inventory under Section 729 of this code a full and
496	496	complete list of all claims due or owing to the ward that must
497	497	state:
498	498	(1) the name of each person indebted to the ward and
499	499	the address of the person if known;
500	500	(2) the nature of the debt, whether it is a note, bill,
501	501	bond, or other written obligation or whether it is an account or
502	502	verbal contract;
503	503	(3) the date of the indebtedness and the date when the
504	504	debt is or was due;
505	505	(4) the amount of each claim, the rate of interest on
506	506	each claim, and time for which the claim bears interest; and
507	507	(5) what portion of the claim is held in common with
508	508	others[, including the names and the relationships of other part
509	509	owners] and the interest of the estate in the claim.
510	510	SECTION 24. Subsections (a) and (d), Section 745, Texas
511	511	Probate Code, are amended to read as follows:
512	512	(a) A guardianship of the estate of a ward shall be settled
513	513	when:
514	514	(1) a minor ward dies or becomes an adult by becoming
515	515	18 years of age, or by removal of disabilities of minority according
516	516	to the law of this state, or by marriage;
517	517	(2) an incapacitated ward dies, or is decreed as
518	518	provided by law to have been restored to full legal capacity;
519	519	(3) the spouse of a married ward has qualified as
520	520	survivor in community and the ward owns no separate property;
521	521	(4) the estate of a ward becomes exhausted;
522	522	(5) the foreseeable income accruing to a ward or to the
523	523	ward's [his] estate is so negligible that maintaining the
524	524	guardianship in force would be burdensome;
525	525	(6) all of the assets of the estate have been placed in
526	526	a management trust under Subpart N[, Part 4,] of this part, or have
527	527	been transferred to a pooled trust subaccount in accordance with a
528	528	court order issued as provided by Subpart I, Part 5, of this
529	529	chapter, [code] and the court determines that a guardianship of
530	530	[for] the ward's estate [ward] is no longer necessary; or
531	531	(7) the court determines for any other reason that a
532	532	guardianship for the ward is no longer necessary.
533	533	(d) In the settlement of a guardianship, the court may
534	534	appoint an attorney ad litem to represent the interests of the ward,
535	535	and may allow the attorney ad litem reasonable compensation to be
536	536	taxed as costs [for services provided by the attorney out of the
537	537	ward's estate].
538	538	SECTION 25. Subsection (c), Section 770, Texas Probate
539	539	Code, is amended to read as follows:
540	540	(c) A guardian of a person younger than 18 [16] years of age
541	541	may voluntarily admit the ward [an incapacitated person] to a
542	542	public or private inpatient psychiatric facility for care and
543	543	treatment.
544	544	SECTION 26. The heading to Subpart M, Part 4, Chapter XIII,
545	545	Texas Probate Code, is amended to read as follows:
546	546	SUBPART M. TAX-MOTIVATED, [TAX MOTIVATED AND] CHARITABLE, AND
547	547	OTHER GIFTS
548	548	SECTION 27. The heading to Section 865, Texas Probate Code,
549	549	is amended to read as follows:
550	550	Sec. 865. POWER TO MAKE CERTAIN [TAX-MOTIVATED] GIFTS AND
551	551	TRANSFERS.
552	552	SECTION 28. Subsections (a) and (b), Section 865, Texas
553	553	Probate Code, are amended to read as follows:
554	554	(a) On application of the guardian of the estate or any
555	555	interested person [party] and after the posting of notice, the
556	556	court, after hearing, may enter an order that authorizes the
557	557	guardian to apply the principal or income of the ward's estate that
558	558	is not required for the support of the ward or the ward's family
559	559	during the ward's lifetime toward the establishment of an estate
560	560	plan for the purpose of minimizing income, estate, inheritance, or
561	561	other taxes payable out of the ward's estate, or to transfer a
562	562	portion of the ward's estate as necessary to qualify the ward for
563	563	government benefits and only to the extent allowed by applicable
564	564	state or federal laws, including rules, regarding those benefits,
565	565	on a showing that the ward will probably remain incapacitated
566	566	during the ward's lifetime. On the ward's behalf, the court may
567	567	authorize the guardian to make gifts or transfers described by this
568	568	subsection, outright or in trust, of the ward's [personal] property
569	569	[or real estate] to or for the benefit of:
570	570	(1) an organization to which charitable contributions
571	571	may be made under the Internal Revenue Code and in which it is shown
572	572	the ward would reasonably have an interest;
573	573	(2) the ward's spouse, descendant, or other person
574	574	related to the ward by blood or marriage who are identifiable at the
575	575	time of the order;
576	576	(3) a devisee under the ward's last validly executed
577	577	will, trust, or other beneficial instrument if the instrument
578	578	exists; and
579	579	(4) a person serving as guardian of the ward if the
580	580	person is eligible under either Subdivision (2) or (3) of this
581	581	subsection.
582	582	(b) The person making an application to the court under this
583	583	section shall outline the proposed estate or other transfer plan
584	584	and set forth all the benefits that are to be derived from the
585	585	[estate] plan. The application must indicate that the planned
586	586	disposition is consistent with the ward's intentions if the ward's
587	587	intentions can be ascertained. If the ward's intentions cannot be
588	588	ascertained, the ward will be presumed to favor reduction in the
589	589	incidence of the various forms of taxation, the qualification for
590	590	government benefits, and the partial distribution of the ward's
591	591	estate as provided by this section.
592	592	SECTION 29. Subsections (a-1), (b), (c), and (f), Section
593	593	867, Texas Probate Code, are amended to read as follows:
594	594	(a-1) The following persons may apply for the creation of a
595	595	trust under this section:
596	596	(1) the guardian of the estate of a ward;
597	597	(2) the guardian of the person of a ward;
598	598	(3) the guardian of both the person of and estate of a
599	599	ward;
600	600	(4) an attorney ad litem or guardian ad litem
601	601	appointed to represent a ward or the ward's interests;
602	602	(5) a person interested in the welfare of an alleged
603	603	incapacitated person who does not have a guardian [of the estate];
604	604	[or]
605	605	(6) an attorney ad litem or guardian ad litem
606	606	appointed to represent an alleged incapacitated person who does not
607	607	have a guardian; or
608	608	(7) a person who has only a physical disability [that
609	609	person's interests].
610	610	(b) On application by an appropriate person as provided by
611	611	Subsection (a-1) of this section and subject to Subsection (b-1) of
612	612	this section, if applicable, the court with jurisdiction over the
613	613	proceedings [guardianship] may enter an order that creates [for the
614	614	ward's benefit] a trust for the management of the [guardianship]
615	615	funds of the person with respect to whom the application is filed if
616	616	the court finds that the creation of the trust is in the person's
617	617	[ward's] best interests.
618	618	(c) Subject to Subsection (d) of this section, if the court
619	619	finds that it is in the [ward's or incapacitated person's] best
620	620	interests of the person for whom a trust is created under this
621	621	section, the court may appoint a person or entity that meets the
622	622	requirements of Subsection (e) of this section to serve as trustee
623	623	of the trust instead of appointing a financial institution to serve
624	624	in that capacity.
625	625	(f) If a trust is created for a person [ward], the order
626	626	shall direct any [a] person or entity holding property belonging to
627	627	the person for whom the trust is created [ward] or to which that
628	628	person [the ward] is entitled to deliver all or part of the property
629	629	to a person or corporate fiduciary appointed by the court as trustee
630	630	of the trust. [If a trust is created for an incapacitated person
631	631	who does not have a guardian, the order shall direct a person
632	632	holding property belonging to the incapacitated person or to which
633	633	the incapacitated person is entitled to deliver all or part of the
634	634	property to the corporate fiduciary or other person appointed as
635	635	trustee of the trust.] The order shall include terms, conditions,
636	636	and limitations placed on the trust. The court may [shall] maintain
637	637	the trust under the same cause number as the guardianship
638	638	proceeding, if the person for whom the trust is created is a ward or
639	639	proposed ward [applicable].
640	640	SECTION 30. Subsections (a), (b), and (d), Section 868,
641	641	Texas Probate Code, are amended to read as follows:
642	642	(a) Except as provided by Subsection (d) of this section, a
643	643	trust created under Section 867 of this code must provide that:
644	644	(1) the ward, [or] incapacitated person, or person who
645	645	has only a physical disability is the sole beneficiary of the trust;
646	646	(2) the trustee may disburse an amount of the trust's
647	647	principal or income as the trustee determines is necessary to
648	648	expend for the health, education, support, or maintenance of the
649	649	[ward or incapacitated] person for whom the trust is created;
650	650	(3) the income of the trust that the trustee does not
651	651	disburse under Subdivision (2) of this subsection must be added to
652	652	the principal of the trust;
653	653	(4) if the trustee is a corporate fiduciary, the
654	654	trustee serves without giving a bond; and
655	655	(5) the trustee, subject to the court's approval, is
656	656	entitled to receive reasonable compensation for services that the
657	657	trustee provided to the [ward or incapacitated] person for whom the
658	658	trust is created as the [ward's or incapacitated] person's trustee
659	659	that is:
660	660	(A) to be paid from the trust's income,
661	661	principal, or both; and
662	662	(B) determined, paid, reduced, and eliminated in
663	663	the same manner as compensation of a guardian [of an estate] under
664	664	Section 665 of this code.
665	665	(b) The trust may provide that a trustee make a
666	666	distribution, payment, use, or application of trust funds for the
667	667	health, education, support, or maintenance of the [ward or
668	668	incapacitated] person for whom the trust is created or of another
669	669	person whom the [ward or incapacitated] person for whom the trust is
670	670	created is legally obligated to support, as necessary and without
671	671	the intervention of a guardian or other representative of the ward
672	672	or of a representative of the incapacitated person or person who has
673	673	only a physical disability, to:
674	674	(1) the ward's guardian;
675	675	(2) a person who has physical custody of the [ward or
676	676	incapacitated] person for whom the trust is created or another
677	677	person whom the [ward or incapacitated] person for whom the trust is
678	678	created is legally obligated to support; or
679	679	(3) a person providing a good or service to the [ward
680	680	or incapacitated] person for whom the trust is created or another
681	681	person whom the [ward or incapacitated] person for whom the trust is
682	682	created is legally obligated to support.
683	683	(d) When creating or modifying a trust, the court may omit
684	684	or modify terms required by Subsection (a)(1) or (2) of this section
685	685	only if the court determines that the omission or modification:
686	686	(1) is necessary and appropriate for the [ward or
687	687	incapacitated] person for whom the trust is created to be eligible
688	688	to receive public benefits or assistance under a state or federal
689	689	program that is not otherwise available to the [ward or
690	690	incapacitated] person; and
691	691	(2) is in the [ward's or incapacitated person's] best
692	692	interests of the person for whom the trust is created.
693	693	SECTION 31. Subsection (a), Section 868C, Texas Probate
694	694	Code, is amended to read as follows:
695	695	(a) If the court determines that it is in the [ward's or
696	696	incapacitated person's] best interests of the person for whom a
697	697	trust is created under Section 867 of this code, the court may order
698	698	the transfer of all property in the [a management] trust [created
699	699	under Section 867 of this code] to a subaccount of a pooled trust
700	700	established in accordance with Subpart I, Part 5, of this chapter.
701	701	The transfer of property from the management trust to the
702	702	subaccount of the pooled trust shall be treated as a continuation of
703	703	the management trust and may not be treated as the establishment of
704	704	a new trust for purposes of 42 U.S.C. Section 1396p(d)(4)(A) or (C)
705	705	or otherwise for purposes of the management trust beneficiary's
706	706	[ward's or incapacitated person's] eligibility for medical
707	707	assistance under Chapter 32, Human Resources Code.
708	708	SECTION 32. Subsection (b), Section 869, Texas Probate
709	709	Code, is amended to read as follows:
710	710	(b) The following may not revoke the trust:
711	711	(1) the ward for whom the trust is created or the
712	712	guardian of the ward's estate;
713	713	(2) [or] the incapacitated person for whom the trust
714	714	is created; or
715	715	(3) the person who has only a physical disability for
716	716	whom the trust is created[, as applicable, may not revoke the
717	717	trust].
718	718	SECTION 33. Section 870, Texas Probate Code, is amended to
719	719	read as follows:
720	720	Sec. 870. TERMINATION OF TRUST. (a) If the [ward or
721	721	incapacitated] person for whom a trust is created under Section 867
722	722	of this code is a minor, the trust terminates:
723	723	(1) on the person's death [of the ward or incapacitated
724	724	person] or the [ward's or incapacitated] person's 18th birthday,
725	725	whichever is earlier; or
726	726	(2) on the date provided by court order, which may not
727	727	be later than the [ward's or incapacitated] person's 25th birthday.
728	728	(b) If the [ward or incapacitated] person for whom a trust
729	729	is created under Section 867 of this code is not a minor, the trust
730	730	terminates:
731	731	(1) according to the terms of the trust;
732	732	(2) on the date the court determines that continuing
733	733	the trust is no longer in the [ward's or incapacitated] person's
734	734	best interests, subject to Section 868C(b) of this code; [,] or
735	735	(3) on the person's death [of the ward or incapacitated
736	736	person].
737	737	SECTION 34. Subpart N, Part 4, Chapter XIII, Texas Probate
738	738	Code, is amended by adding Section 870A to read as follows:
739	739	Sec. 870A. INITIAL ACCOUNTING BY CERTAIN TRUSTEES REQUIRED.
740	740	(a) This section applies only to a trustee of a trust created under
741	741	Section 867 of this code for a person for whom a guardianship
742	742	proceeding is pending on the date the trust is created.
743	743	(b) Not later than the 30th day after the date a trustee to
744	744	which this section applies receives property into the trust, the
745	745	trustee shall file with the court in which the guardianship
746	746	proceeding is pending a report describing all property held in the
747	747	trust on the date of the report and specifying the value of the
748	748	property on that date.
749	749	SECTION 35. Section 871, Texas Probate Code, is amended by
750	750	amending Subsection (a) and adding Subsection (d) to read as
751	751	follows:
752	752	(a) Except as provided by Subsection (d) of this section,
753	753	the [The] trustee shall prepare and file with the court an annual
754	754	accounting of transactions in the trust in the same manner and form
755	755	that is required of a guardian under this chapter.
756	756	(d) The court may not require a trustee of a trust created
757	757	for a person who has only a physical disability to prepare and file
758	758	with the court the annual accounting as described by Subsection (a)
759	759	of this section.
760	760	SECTION 36. Section 873, Texas Probate Code, is amended to
761	761	read as follows:
762	762	Sec. 873. DISTRIBUTION OF TRUST PROPERTY. (a) Unless
763	763	otherwise provided by the court and except as provided by
764	764	Subsection (b) of this section, the trustee shall:
765	765	(1) prepare a final account in the same form and manner
766	766	that is required of a guardian under Section 749 of this code; and
767	767	(2) on court approval, distribute the principal or any
768	768	undistributed income of the trust:
769	769	(A) to the ward or incapacitated person when the
770	770	trust terminates on its own terms;
771	771	(B) to the successor trustee on appointment of a
772	772	successor trustee; or
773	773	(C) to the representative of the deceased ward's
774	774	or incapacitated person's estate on the ward's or incapacitated
775	775	person's death.
776	776	(b) The court may not require a trustee of a trust created
777	777	for a person who has only a physical disability to prepare and file
778	778	with the court a final account as described by Subsection (a)(1) of
779	779	this section. The trustee shall distribute the principal and any
780	780	undistributed income of the trust in the manner provided by
781	781	Subsection (a)(2) of this section for a trust the beneficiary of
782	782	which is a ward or incapacitated person.
783	783	SECTION 37. Subdivision (1), Section 910, Texas Probate
784	784	Code, is amended to read as follows:
785	785	(1) "Beneficiary" means a minor or other incapacitated
786	786	person, an alleged incapacitated person, or a disabled person who
787	787	is not an[, or any other] incapacitated person for whom a subaccount
788	788	is established.
789	789	SECTION 38. Section 911, Texas Probate Code, is amended to
790	790	read as follows:
791	791	Sec. 911. APPLICATION. The following persons [A person
792	792	interested in the welfare of a minor, a disabled person, or any
793	793	other incapacitated person] may apply to the court for the
794	794	establishment of a subaccount for the benefit of a [the] minor[,
795	795	disabled person,] or other incapacitated person, an alleged
796	796	incapacitated person, or a disabled person who is not an
797	797	incapacitated person:
798	798	(1) the guardian of the incapacitated person;
799	799	(2) a person who has filed an application for the
800	800	appointment of a guardian for the alleged incapacitated person;
801	801	(3) an attorney ad litem or guardian ad litem
802	802	appointed to represent:
803	803	(A) the incapacitated person who is a ward or
804	804	that person's interests; or
805	805	(B) the alleged incapacitated person who does not
806	806	have a guardian; or
807	807	(4) the disabled person [as the beneficiary].
808	808	SECTION 39. Subsection (i), Section 25.0022, Government
809	809	Code, is amended to read as follows:
810	810	(i) A judge assigned under this section has the
811	811	jurisdiction, powers, and duties given by Sections 4A, 4C, 4F, 4G,
812	812	4H, 5B, 605, 607A, 607B, 607D, 607E [606, 607], and 608, Texas
813	813	Probate Code, to statutory probate court judges by general law.
814	814	SECTION 40. Subsection (c), Section 25.1132, Government
815	815	Code, is amended to read as follows:
816	816	(c) A county court at law in Hood County has concurrent
817	817	jurisdiction with the district court in:
818	818	(1) civil cases in which the matter in controversy
819	819	exceeds $500 but does not exceed $250,000, excluding interest;
820	820	(2) family law cases and related proceedings;
821	821	(3) contested probate matters under Section 4D(a),
822	822	Texas Probate Code; and
823	823	(4) contested [guardianship] matters in guardianship
824	824	proceedings under Section 607B(a) [606(b)], Texas Probate Code.
825	825	SECTION 41. Notwithstanding the transfer of Sections 606
826	826	and 607, Texas Probate Code, to the Estates Code and redesignation
827	827	as Sections 606 and 607 of that code effective January 1, 2014, by
828	828	Section 5, Chapter 680 (H.B. 2502), Acts of the 81st Legislature,
829	829	Regular Session, 2009, Sections 606 and 607, Texas Probate Code,
830	830	are repealed.
831	831	SECTION 42. (a) Except as otherwise provided by this
832	832	section, the changes in law made by this Act apply to:
833	833	(1) a guardianship created before, on, or after the
834	834	effective date of this Act; and
835	835	(2) an application for a guardianship pending on, or
836	836	filed on or after, the effective date of this Act.
837	837	(b) Sections 605, 608, and 609, Texas Probate Code, as
838	838	amended by this Act, and Sections 606A, 607A, 607B, 607C, 607D, and
839	839	607E, Texas Probate Code, as added by this Act, apply only to an
840	840	action filed or a proceeding commenced on or after the effective
841	841	date of this Act. An action filed or proceeding commenced before
842	842	the effective date of this Act is governed by the law in effect on
843	843	the date the action was filed or the proceeding was commenced, and
844	844	the former law is continued in effect for that purpose.
845	845	(c) Sections 867, 868, 868C, 869, 870, 871, and 873, Texas
846	846	Probate Code, as amended by this Act, and Section 870A, Texas
847	847	Probate Code, as added by this Act, apply only to an application for
848	848	the creation, modification, or termination of a management trust
849	849	under Subpart N, Part 4, Chapter XIII, Texas Probate Code, that is
850	850	filed on or after the effective date of this Act. An application
851	851	described by this subsection that is filed before the effective
852	852	date of this Act is governed by the law in effect on the date the
853	853	application was filed, and the former law is continued in effect for
854	854	that purpose.
855	855	(d) Sections 910 and 911, Texas Probate Code, as amended by
856	856	this Act, apply only to an application for the creation of a pooled
857	857	trust subaccount under Subpart I, Part 5, Chapter XIII, Texas
858	858	Probate Code, that is filed on or after the effective date of this
859	859	Act. An application described by this subsection that is filed
860	860	before the effective date of this Act is governed by the law in
861	861	effect on the date the application was filed, and the former law is
862	862	continued in effect for that purpose.
863	863	SECTION 43. This Act takes effect September 1, 2011.
864	864	COMMITTEE AMENDMENT NO. 1
865	865	Amend S.B. No. 1196 (Senate engrossed version) as follows:
866	866	(1) Add the following appropriately numbered SECTION to the
867	867	bill and renumber subsequent SECTIONS of the bill accordingly:
868	868	SECTION ___. Subpart E, Part 2, Chapter XIII, Texas Probate
869	869	Code, is amended by adding Section 652 to read as follows:
870	870	Sec. 652. LOCATION OF HEARING. (a) Except as provided by
871	871	Subsection (b) of this section, the judge may hold a hearing on a
872	872	guardianship matter involving an adult ward or adult proposed ward
873	873	at any suitable location in the county in which the guardianship
874	874	matter is pending. The hearing should be held in a physical setting
875	875	that is not likely to have a harmful effect on the ward or proposed
876	876	ward.
877	877	(b) On the request of the adult proposed ward, the adult
878	878	ward, or the attorney of the proposed ward or ward, the hearing may
879	879	not be held under the authority of this section at a place other
880	880	than the courthouse.
881	881	(2) Immediately following SECTION 42(b) of the bill (page
882	882	32, between lines 5 and 6), insert the following appropriately
883	883	lettered subsection and reletter subsequent subsections of SECTION
884	884	42 accordingly:
885	885	(__) Section 652, Texas Probate Code, as added by this Act,
886	886	applies to a guardianship matter that is pending or commenced on or
887	887	after the effective date of this Act.
888	888	Madden